by Mike MasnickFor years now, we've been writing about the FBI's now popular practice of devising its own totally bogus "terrorist plots" and then convincing some hapless individual to join the "plot" only to later arrest them to great fanfare, despite the fact that everyone (other than the arrested person) involved was actually an FBI agent, and there was no actual danger or real plot (or real terrorists) involved. In fact, we just had yet another such story. We've written about similar occurances over and over and over and over and over and over and over and over and over and over and over again -- and, depressingly, it seems that courts repeatedly uphold this practice as not being entrapment. Many have been questioning why the FBI is spending so much time and money creating fake terrorist plots that don't seem to protect anyone (but do give the FBI/DOJ lots of big headlines about "stopping terrorism!"), but the courts have basically let it go.

However, it finally appears that one judge thinks these kinds of things go too far -- and it happens to be Judge Otis Wright, whose name you may recall from being the first judge to really slap down Prenda law for its obnoxious copyright trolling practices. Reader Frankz alerts us to the news Wright has dismissed a case involving the Bureau of Alcohol Tobacco and Firearms (ATF) for a similar "made up crime" and completely trashed the government for doing these kinds of things. As with his order in the Prenda case, I urge you to read his full dismissal which is granted for "outrageous government conduct." Judge Wright, it appears, is not one to hide his opinions about those who abuse the legal system. The ruling kicks off with a hint of where this is heading:

“‘Lead us not into temptation,’” Judge Noonan warned. United States v. Black, 733 F.3d 294, 313 (Noonan, J., dissenting). But into temptation the Government has gone, ensnaring chronically unemployed individuals from poverty-ridden areas in its fake drug stash-house robberies. While undoubtedly a valid law-enforcement tool when employed to target or prevent demonstrated criminal enterprises, reverse stings offend the United States Constitution when used solely to obtain convictions.

This case didn't involve "terrorism" like the FBI cases, but rather a similar "reverse sting" in which an ATF agent pretends to be a cocaine courier, tells some dupes about a "stash house" he knows about and then pushes them to rob the house. The ATF agent convinced a couple of guys, Cedrick Hudson and Joseph Whitfield, to take part, and they eventually brought along a third guy, Antuan Dunlap, after the ATF guy kept asking them to bring along associates. The group, lead by the ATF agent's detailed plan, agreed to rob this house and then were all arrested. It's the third guy, Dunlap, who argued that the government was engaged in outrageous conduct. The government claims that Dunlap bragging about being involved in past robberies means that it was perfectly reasonable to arrest him here, but Wright isn't having it:

the Court finds that the Government’s extensive involvement in dreaming up this fanciful scheme—including the arbitrary amount of drugs and illusory need for weapons and extra associates—transcends the bounds of due process and renders the Government’s actions outrageous.

Wright is not persuaded by the fact that Dunlap apparently bragged about his criminal past to the ATF agent, noting the reality of the situation:

It makes little sense to justify the Government’s capricious, stash-house scheme at its inception by what Thompson later learned about Dunlap. In a situation where an apparently experienced cocaine courier is boasting to some small-time crooks about the chance to hit the mother lode, it is only human nature that the individual is going to try to impress the courier with wild tales of past criminal conduct. In this case, there is no evidence that Dunlap actually robbed a Western Union or Nix. But even if he did, Thompson did not learn about Dunlap’s alleged past crimes until after Dunlap joined the doomed-to-fail crew. The Government cannot bootstrap this post hoc knowledge to justify the scheme from the beginning.

Those commercial robberies also bear little upon the fictitious stash-house scheme or the home invasions the ATF sought to eliminate. In fact, when Dunlap was bragging about this past exploits, he disavowed any connection to drugs:

So contrary to the Government’s contention, Dunlap’s “admissions” only served to demonstrate that he had no propensity to commit drug crimes—the entire subject of the reverse sting.

Judge Wright clearly sees how allowing this kind of activity is going to lead to serious problems, especially as law enforcement can prey on desperate individuals, coax them into various plots, and then arrest them:

Allowing after-the-fact knowledge to mitigate the Court’s concerns in a situation like this also creates a perverse incentive for the Government. It encourages the Government to cast a wide net, trawling for crooks in seedy, poverty-ridden areas—all without an iota of suspicion that any particular person has committed similar conduct in the past. And if the Government happens to get it right and catch someone who previously engaged in crime, the courts will place their imprimatur on the whole fishing expedition.

The Court declines the invitation to endorse this nab-first-ask-questions-later approach. While this situation is a win-win for the Government, it is really only lose-lose for the unwitting individuals unlucky enough to fall into the Government's net. If they have never committed criminal activity in the past but agree to participate in the fake robbery, they go to prison—unless they can surmount the Everest-like hurdle to establish an entrapment defense.

This is important, because many people try to fight back against these kinds of cases with claims of entrapment, but Judge Wright correctly notes that (unfortunately) the bar to meeting an entrapment claim is ridiculously high. However, it's pretty obvious that there is no crime here absent the government's own intervention:

But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

.... Despite the Supreme Court’s admonition, the ATF manufactured this entire crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them.

Furthermore, Judge Wright notes that the government encouraged the activity, even if it wasn't to the level of entrapment, it was still quite clearly the key driver of the entire "crime" and that's what makes it "outrageous."

...here, the undercover agent provided a getaway van, putative safe house, and—most important of all—the entire scheme and its fictitious components. He also alleviated Defendants’ logistical and safety concerns when he “proposed that he would be inside the stash house at the time of the robbery . . . .” ...

Thompson also goaded Defendants to acquire weapons. He repeated several times over the course of the two-month ruse that “at least one of the individuals [guarding the nonexistent stash house] always carried a firearm.” ... (“SA Thompson asked if HUDSON and WHITFIELD’s associates could handle it if something happened during the robbery (referring to someone getting shot).”); ... (“SA Thompson asked if they could get him something (referring to a firearm), and WHITFIELD indicated he could get SA Thompson a little .380.”); ... (“SA Thompson asked about WHITFIELD getting him a little ‘strap’ (referring to a firearm that was previously discussed) and SA Thompson offered to cash him out (meaning pay him for the firearm). WHITFIELD indicted [sic] he could get SA Thompson something.”); ... (“SA Thompson next mentioned that there was always two individuals in the stash house and at least one of them was always armed, but as far as he knew, both could be armed.”); ... (“SA Thompson later indicated that the occupants of the stash house may not go down very easy.”); ... (“Like I said the one fool he is always strapped, but the other dude I think he might be, I just don’t know.”).) With Thompson continually sounding the war horn, it is not surprising that Defendants showed up to the final meeting with two weapons.

The undercover agent’s continued participation, assurances, and suggestions over the course of the two-month period made him “a partner in the criminal activity” rather than a mere “observer.” See Black, 733 F.3d at 308. His input was likewise “necessary” for Defendants to carry out their doomed plan, since but for Thompson’s imagination, there would have been no fictitious stash-house robbery to begin with— let alone the need for guns and extra associates.

Judge Wright points out that the government's attempt to brush all of this away by noting the guys were willing participants is bogus, since they're effectively preying on the extremely poor with promises of easy money. And, given the situation, the government can manipulate all the factors to basically nab anyone.

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

In fact, Judge Wright notes that all of these choices by the ATF were not accidental. The push to get them to bring drugs, the amount of cocaine being discussed, each help the government pile on charges and potential time in jail. And while the government claims that defendants can argue a lack of intent in their own defense, Judge Wright notes that very few of these cases ever go to trial, because with the huge number of years in jail that people face, they almost always take a plea deal.

With the capriciously selected amount of drugs, a defendant has the proverbial Sword of Damocles hanging over his head. He is not likely to let it fall and face the considerable prison time that surely awaits him if he loses at trial—especially when the Government has spent, like in this case, months recording conversations inculpating him in the trumped-up conspiracy.

Judge Wright notes the absurdity of sentencing guidelines based on a crime that is entirely made up by the government:

But the Government’s rationalization is hopelessly circular. The Government seeks to prosecute Dunlap for a fake crime it cut from whole cloth. To justify the serious sentence Dunlap faces as the result of its imagination, the Government attempts to use its creation of the crime, including the need to establish the undercover agent’s credibility, as the validation for the amount of drugs. The amount of drugs then justifies the sentence. But since the Government created each necessity and justification, the sentence no longer bears a proportional relationship to the defendant’s culpability—just the Government’s imagination. Something more than mere bootstrapping is needed for the Government to take 15-plus years away from Dunlap’s life.

The Government’s argument also proves the problem with this whole scheme. The Government asserts that it dreams up these stash-house robberies to catch people inclined to commit home invasions. But the Government must make the robbery scheme tempting enough to nab a potential criminal. The Government thus sets the drug amount at a level apparently it knows that no poverty-ridden individual could pass up. So the Government essentially admits that this ruse is not meant to simply skim off those individuals likely to commit similar crimes; rather, it is designed to never fail. And the high number of fake stash-house convictions the Government has attained confirms this strategy.

Judge Wright doesn't mince words about the impact of this case:

Zero. That’s the amount of drugs that the Government has taken off the streets as the result of this case and the hundreds of other fake stash-house cases around the country. That’s the problem with creating crime: the Government is not making the country any safer or reducing the actual flow of drugs. But for the Government’s action, the fake stash house would still be fake, the nonexistent drugs would still be nonexistent, and the fictional armed guards would still be fictional.... Instead, the Government comes close to imprisoning people solely because of their thoughts and economic circumstances rather than their criminal actions.

So, the whole operation does nothing to take drugs off the street or stop any real crime. Instead? It just costs us all money:

But these stash-house cases do cost someone money: federal taxpayers. As of the date of this Order, there are 215,566 inmates in federal detention.... According to the Bureau of Prisons, the average cost to incarcerate a federal inmate in 2011 was $28,893.40.... In fictitious stash-house cases, the ATF usually seeks a 15-year sentence.... These fake robberies therefore cost federal taxpayers approximately $433,401 per defendant in incarceration costs alone—not to mention investigative, prosecutorial, defense, and judicial resources.

Judge Wright concludes with a stinging rebuke of the federal government and how it has confused law enforcement with "crime creation."

The time has come to remind the Executive Branch that the Constitution charges it with law enforcement—not crime creation. A reverse-sting operation like this one transcends the bounds of due process and makes the Government “the oppressor of its people.” .... In this case, the Constitution will not tolerate subjecting an individual to prosecution for an imaginary crime subject to a very real punishment—a punishment which rests entirely on ATF agents’ whims.

It is entirely likely that the DOJ will appeal, but for now, once again, we send out kudos to Judge Wright for seeing a true scam for what it is and for not being afraid to actually use his power as a judge, who is in charge of upholding the Constitution, to push back on clear abuses of the Constitution.

It should be noted that "outrageous government conduct" is not some unusually courageous emotional assertion, but an established legal name of very particular case, similar to "entrapment". If you read the case, you can see how the judge demonstrates the difference between o.g.c. and entrapment (which has much higher bar of proof), using numerous precedents. I'm not saying that the judge shouldn't be commended for this ruling, he certainly deserves a praise, but what he did was not unprecedented.

On the other hand, isn't it remarkable that the emotionally-charged term "outrageous" is nothing but an ordinary legal definition reserved for the government.

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